Common Law Judging : Subjectivity, Impartiality, and the Making of Law

Douglas Edlin

• Publisher: University of Michigan Press
• Year: 2016
• ISBN:
  9780472902347
• Topic: Política y relaciones internacionales
• Subtopic: Gobierno estadounidense

Are judges supposed to be objective? Citizens, scholars, and legal professionals commonly assume that subjectivity and objectivity are opposites, with the corollary that subjectivity is a vice and objectivity is a virtue. These assumptions underlie passionate debates over adherence to original intent and judicial activism.Douglas Edlin challenges these widely held assumptions by reorienting the entire discussion. Rather than analyze judging in terms of objectivity and truth, he argues that we should instead approach the role of a judge's individual perspective in terms of intersubjectivity and validity. Drawing upon Kantian aesthetic theory as well as case law, legal theory, and constitutional theory, Edlin develops a new conceptual framework for the respective roles of the individual judge and of the judiciary as an institution, as well as the relationship between them, as integral parts of the broader legal and political community.

1. Introduction

[The] problem here concerns the seeming impossibility of ascribing to subjectivity an ineliminable role in judging, without thereby imperilling the very possibility of judgements that are objective.1

—David Bell

Wise Latinas and Judicial Identity

Prior to her nomination to the Supreme Court of the United States, Justice Sonia Sotomayor made statements in some of her speeches indicating that who she is influences how she judges. The reactions sparked by Justice Sotomayor’s now well-known “wise Latina” comment represent a powerfully and frequently expressed view that judges should decide cases based on the law rather than their own values or perspectives. The perceived tension between the subjective values of a judge and the objective value of the law has led to widespread and long-standing confusions about judicial decision making in the common law tradition. My goal in this book is to examine closely the dynamics of subjectivity in the judicial process and the nature of objectivity in law. I will argue that subjective judicial values have never been absent from common law adjudication and that objectivity, in the sense that is often assumed for law, has never been present in common law legal sources.

In the debates about Justice Sotomayor’s comment, inside and outside the US Senate Judiciary Committee, her remarks were rarely quoted in their full context. Here is a fuller (but still slightly edited) reproduction of what Justice Sotomayor said:

Whether born from experience or inherent physiological or cultural differences . . . our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha [Minow] has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown. However, to understand takes time and effort, something that not all people are willing to give . . . Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.2

Justice Sotomayor is actually making two points here. One, which may be found in the “wise Latina” sentence itself, is that a Latina will be a better judge than a white man simply by virtue of her own life experiences. Another, which got lost in the noise surrounding whether we should want empathic judges,3 is whether a judge’s experiences and perspectives will and should inform her decisions.

At her confirmation hearings before the US Senate Judiciary Committee, several senators made statements and asked questions indicating their assumption that a judge’s own perspectives and values had no place in her courtroom. For example, in his opening statement, Senator Charles Grassley cited the wise Latina comment and articulated his view of the appropriate qualifications for justice of the Supreme Court of the United States:

[A]n impressive legal record and superior intellect are not the only criteria that we on this Committee have to consider. To be truly qualified, the nominee must understand the proper role of a judge in society—that is, we want to be absolutely certain that the nominee will faithfully interpret the law and the Constitution without bias or prejudice. This is the most critical qualification of a Supreme Court Justice—the capacity to set aside one’s own feelings so that he or she can blindly and dispassionately administer equal justice for all. . . . The Constitution requires that judges be free from personal politics, feelings, and preferences. . . . Just like Lady Justice, judges and Justices must wear blindfolds when they interpret the Constitution and administer justice. I will be asking you about your ability to wear that judicial blindfold. . . . I will be asking you about your judicial philosophy, whether you allow biases and personal preferences to dictate your judicial methods. . . . I am looking to support a restrained jurist committed to the rule of law and the Constitution. I am not looking to support a creative jurist who will allow his or her background and personal preferences to decide cases.4

Senator Grassley’s comments were reinforced by several members of the Judiciary Committee.5 Remarkably, these members of the Committee took this position with respect to Justice Sotomayor’s statements even though Justice Alito made similar comments during his confirmation hearings, which prompted none of the same reservations from these senators.6

Throughout the Sotomayor hearings, members of the Judiciary Committee failed to differentiate prejudices and biases from perspectives and experiences. Moreover, others who offered testimony at the Sotomayor hearings echoed the call to place objectivity and impartiality on one side of the scale of responsible judging and subjectivity and empathy on the other:

First, Judge Sotomayor has explicitly rejected the idea that there can be an objective stance in judging. . . . If there is no objective view, one can question whether there is any law at all apart from a judge’s personal choices. Second, there is the related issue of the role of personal experiences in judicial decision making. It would be hard to deny that judges are human and made up of their unique life journeys. Many judges recognize this and explain how they strive to remain impartial by putting aside their personal preferences. Judge Sotomayor’s position, however, has suggested that her personal background, her race, gender, and life experiences, should affect judicial decisions. . . . In our courts, the rule of law should prevail over the rule of what the judge thinks is best.7

Even on the long list of missed opportunities for Senate Judiciary Committee hearings to frame a serious public discussion of the position and responsibilities of federal judges, Justice Sotomayor’s hearings were a spectacular failure. The hearings demonstrate that the politics of the nomination process need to change. But that is not my subject here.8

The failures of the Sotomayor hearings may not be entirely the senators’ fault. Their assertions that a judge must disengage her personal values and experiences so that she may dispassionately dispense justice according to law reflect a pervasive assumption in public and scholarly discussions of law and judging. The argument in this book is an effort to explain not just why Justice Sotomayor’s comments about the importance of personal perspective for judicial perspective, and the influence of judicial perspective on judicial decision making, are correct, but why we need to understand the authentic dynamics of judicial decision making beyond the prevalent “either objective law or subjective preference” tropes.9 If we can stop talking about an abstract ideal of judging that has never existed in practice and that we should not want to exist, then we can begin talking more seriously and honestly about the ways personal experiences and perspectives benefit judicial decision making and when these personal experiences and perspectives may impede a judge’s ability to decide a case fairly.10

Objective Laws and Subjective Judges

Law is supposed to be objective, and judges make law. So we might naturally conclude that the act of judging must also be objective. We might also assume that an element of subjectivity in judging undermines the objectivity of law. The point of this book is to explain that subjectivity in judging, properly understood, does not threaten the objectivity of law, properly understood. I will offer an account of the subjective element of judging that situates the judge in the process of judgment and argues against two prevalent but mistaken accounts of objectivity in law.

For law to be objective, the story goes, it must be applied by judges in the same way to everyone.11 But the law that judges make and the deliberative process by which they make it are not the same thing. That the law is objective (in a certain sense) and, once made, should generally be applicable to all similarly situated subjects, does not necessitate that the process by which it is made must also be objective (in the same sense). The common law tradition does not equate the law and the process so rigidly. In this book, I hope to disentangle the judicial process and its legal product. More specifically, I will argue here that an important aspect of the common law judicial process is irreducibly and inescapably subjective and that this is not a bad thing. Indeed, the subjective aspect of the process is due as much to the nature of judging as it is to the nature of judges.

Concerns about objectivity in law and subjectivity in judging are familiar. The conventional view holds that judges must enforce the law “as written” or else the rule of law and democratic government are jeopardized.12 We are told that “a government of laws, and not of men”13 requires that we be governed by the objective rules of law rather than the subjective preferences of judges. Otherwise, we will be governed by the preferences of a coterie of unelected, unrepresentative, unaccountable, and unconstrained officials, rather than by the laws enacted by our elected representatives. Therefore, the story goes, judicial decisions must be made according to what the law says rather than according to what the judge says.

Concerns about the threat of judicial subjectivity pervade our discussions of judicial discretion, judicial activism, judicial supremacy, and judicial responsibility,14 and they frame our debates about legal language, legal rules, constitutional meaning, and constitutional interpretation. The perceived tension between the subjective values of judges and the objective qualities of law animates long-standing debates about formalism,15 realism,16 behaviorism,17 attitudinalism,18 originalism,19 and textualism.20 In many instances, these debates exaggerate the definitiveness of rules21 or the discretion of judges.22 And, of course, these debates may also lead one to wonder whether the views of, say, an originalist or a behaviorist, derive from that individual’s subjective preference for originalism or behaviorism.

My goal here is to reconsider the role that subjectivity plays and is meant to play in common law judging and to challenge certain assumptions that are typically made about objectivity in law. I will argue that, contrary to conventional views, the subjective element in common law judging is a necessary and valuable part of the judicial process. I will also argue that objectivity, in the strong sense that is often assumed for law, is not a plausible goal for judging. Our understanding of common law judging would benefit significantly if we replace the outmoded and inaccurate fixation on objectivity (and truth) with the more conceptually and descriptively accurate notion of intersubjectivity (and validity). Intersubjectivity means that the judge decides as an individual within a larger community, that the judge produces judgments with the understanding that they must contain statements of justificatory reasons for legal conclusions, and that these conclusions depend on their evaluation and validation by the community as legal judgments. The judgments are constituted by both their subjective and intersubjective components. By reorienting the discussion of legal judgment in terms of intersubjective validity rather than objective truth, and by examining the relationship between individual responses and publicly articulated reasons in the form of universalizable propositions of law, I hope to explain the nature and value of common law judicial decision making.

My position should not be misunderstood as an argument against objectivity or for subjectivity. A distinction I will develop further in the next two chapters is that the objective aspects of the laws produced through the judicial process should be understood as separate from the judge’s process of judging and communicating her decision.23 However estimable objective truth or objective judgment may appear in the abstract, common law judges do not decide cases in the abstract.24 Within the common law tradition, the point is that “the idea of objectively good judgments, as distinct from judgments that are good under certain (perhaps quite broad ranges of) conditions and from the perspectives of (perhaps highly relevant sets of) people, appears fundamentally untenable.”25

Common Law Judges

The problem with an expectation of objectivity in common law judging is that ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• 1. Introduction
• 2. Subjectivity, Objectivity, Impartiality
• 3. Subjectivity and Intersubjectivity
• 4. Making Law
• 5. Judicial Individualism and Judicial Independence
• 6. Conclusion
• Table of Authorities
• Notes
• References
• Index of Subjects
• Index of Names